The man in black

People sometimes get the idea that adjudicators are a bit like referees on the rugby pitch. Actually, that’s the job of the parties. The adjudicator is more like the scoreboard

“I cannot find a contract that truly uses a common set of rules. In short the adjudicator in building doesn’t know the rules”

Did you see any of the six nations rugby? Good stuff, wasn’t it? Did you catch a glimpse of Arsenal and Chelsea in the Carling cup final? Poor stuff, wasn’t it? And as I watched the games I came to ponder whether us judicial referees are watching too much rugby and football.

I began to wonder if dispute deciders on the construction contracts playing field are deciding disputes much like the dispute decider on the rugby field.

Let me explain. The judge, the arbitrator, the adjudicator are referees, agreed? So too the rugby and soccer officials; the linesman is a referee, the ref is a referee, even the man in the video box at Twickenham is a referee. And when I am an arbitrator and adjudicator I have to be identical to the rugby referee insofar as being independent, impartial, unbiased and even-handed.

But – and it is a big but – I do not referee like the rugby one. The rugby referee decides and tells the parties what the rules are, decides if a rule is broken as a fact and refuses to hear one squeak of “representation”.

Compare that with judicial refereeing. The whole idea of this judicial game is that English law is founded on what is known as the “adversarial system”. However, some (adjudicators in particular) think they are there to play refereeing as though they were the 25th bloke on the same grass as Arsenal and Chelsea. Some adjudicators do not listen to what the parties say at all. Instead, they tell them what the rules are, tell them which ones are broken, and tell them what consequences flow.

I was recently a guest in the High Court in Dublin. Thank you to my Irish host. My eyes and ears were focused all day on the judge. He looked fearsome. But I couldn’t hear him. Oh, he was only a few yards away, perched wig and gown and ample frame behind his massive bench/dais. I couldn’t hear him because he said nothing.

Actually that’s not quite accurate: the morning was punctuated by one remark of his lordship’s when counsel was reading a part of an important observation by a judge 121 years ago. He said: “Ah, well now Mr Bloggs, are you going to take me to the next paragraph?” And counsel did, of course. Nobody was any the wiser why the judge said that.

The point is that the senior Irish High Court judge was conducting his refereeing in just the opposite fashion to the referee next day when Ireland bashed England at Croke Park. The referee on that pitch never stopped telling the players what the rules were.

Don’t, please, come to a construction contract dispute pitch thinking that the adjudicator here will tell you and your opponent what the rules are. It is for you to argue. Don’t expect this type of referee to tell you what rule was broken. It is for you to argue. Don’t expect this type of referee to tell you what you are entitled to by way of a prize or penalty. It is for you to argue.

Your job is to speak up. Your job is to explain what the rules are, which ones were broken, what the result is. And damn it, it’s your opponent’s job to pipe up to explain how wrong you are. And it’s the adjudicator’s job to pipe down. Why? Because that is the way of the English adversarial system. The parties do the yelling, bawling and selling. The judge adjudicates. And it is hardly surprising. The reason is that the football ref knows the rules, one set of rules. But in construction there are dozens, nay hundreds of sets of different rules. I can’t find a construction contract that truly uses a common set of rules. In short, the adjudicator in building and civil engineering simply doesn’t know the rules. True, honest.

If instead we do go the way of a sport referee, I don’t mind one bit. But you might. Arsene Wenger, the manager of Arsenal, criticised the assistant referee in the Chelsea game and Arsene is now on a disciplinary inquiry. Criticise your construction adjudicator and you could easily find yourself at the thick end of £10,000 fine.

Oh yes, let’s do a bit more football refereeing on the construction contract pitch, and watch your lip.

Readers are invited to forward recent judgments for reporting in this column (with full acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple, London EC4Y 7EU. DX: 37164 Biggleswade

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